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Proposed ethics opinions OK one service, nix another

North Carolina attorneys would be allowed to participate in repsight.com, an online service that offers to help lawyers accumulate more positive client reviews, under certain conditions, but would not be allowed to become members of “Lawyers of Distinction,” a private lawyer vanity and marketing company, under two new proposed ethics opinions from the North Carolina State Bar Council’s Ethics Committee.

For a fee, Repsight contacts clients via text or email to solicit a review of an attorney’s work once the legal services are completed, using contact information provided by the attorney. A client’s name and contact information are confidential, but Proposed 2018 Formal Ethics Opinion 7, proposed at the committee’s July meeting, would allow attorneys to use the service if they receive a client’s informed consent to do so.

The opinion also states that lawyers wouldn’t need to post negative reviews, so long as they adequately explain to clients that negative reviews won’t be shared. Under existing ethics rules, if clients do provide negative reviews, a lawyer may contact them to address their concerns. The opinion provides that if a client agrees to change their review, the lawyer may direct Repsight to re-contact the client, provided there is no quid pro quo, or harassing of the client to provide a favorable review.

Proposed 2018 Formal Ethics Opinion 8 would prohibit attorneys from becoming members of Lawyers of Distinction’s marketing operations, regardless of whether they advertised that membership. Existing ethics rules limit lawyers’ ability to advertise inclusion in lists with titles that imply that the lawyers are “super” or “elite” or the like. Among other requirements, an organization must have strict, objective standards for admission in order for attorneys to participate.

Lawyers of Distinction claims that its members are peer-nominated, but attorneys can nominate themselves, providing only very basic information, and then choose to select and pay for a particular membership. As such, the Ethics Committee found that the company’s marketing was misleading, and attorneys could neither participate in the company’s marketing, nor advertise their membership in it.

“The Ethics Committee cannot identify any verifiable strict, objective standards for admission to Lawyers of Distinction in effect that would be recognized by a reasonable lawyer as establishing a legitimate basis for determining whether the lawyer has the knowledge, skill, experience, or expertise indicated by the designated membership,” the proposed opinion reads.

The State Bar Council also adopted four ethics opinions at the July meeting:

  •         2018 Formal Ethics Opinion 1 explains when a lawyer may participate in an online rating system and a lawyer’s professional responsibility for the content posted on a profile on a website directory.
  •         2018 Formal Ethics Opinion 2 rules that a lawyer has a duty to disclose to a tribunal adverse legal authority that is controlling as to that tribunal if the legal authority is known to the lawyer and is not disclosed by opposing counsel.
  •         2018 Formal Ethics Opinion 3 rules that the name of a lawyer who is under an active suspension must be removed from the firm name within a reasonable period of time.
  •         2018 Formal Ethics Opinion 6 rules that, with certain conditions, a lawyer may include in a client’s fee agreement a provision allowing the lawyer’s purchase of litigation cost protection insurance and requiring reimbursement of the insurance premium from the client’s funds in the event of a settlement or favorable trial verdict.

In addition, the Ethics Committee withdrew Proposed 2017 Formal Ethics Opinion 6, “Participation in Platform for Finding and Employing a Lawyer,” due to the discontinuation of the online service at issue. It sent Proposed 2018 Formal Ethics Opinion 5, “Ex Parte Communications with a Judge Regarding Scheduling or Administrative Matter,” back to subcommittee for further study based upon comments it received.

The committee also received an inquiry concerning Bitcoin and other cryptocurrency and sent the inquiry to subcommittee for study.

Follow David Donovan on Twitter @NCLWDonovan

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